Eliza Bradford, Respondent, v. William Bradford, Appellant

Eliza Bradford, Respondent, v. William Bradford, Appellant. (Submitted January 13, 1873 decided March term, 1873.) This was an action of divorce. The answer, among other things, alleged that defendant was lawfully married to the woman with whom he was charged with having committed adultery, and that plaintiff knew he was living and cohabiting with her more than five years before the commencement of this action. It also alleged adultery, upon the part of plaintiff, with various persons mentioned, and that she had given birth to three children since defendant had had intercourse with her. Issues were settled upon all the questions, except the allegation as to plaintiff having given birth to three children. Upon the trial no request was made to submit that question to the jury. In the course of the trial two witnesses testified, without objection, that defendant’s second marriage was generally known from eight to twelve years previous, in the neighborhood where plaintiff resided, in Ireland. Afterward, upon the same question being asked three other witnesses by defendant, the question was objected to and the evidence excluded. A record kept and preserved in the Unitarian Church, in Balia Car, Ireland, where plaintiff resided, but the keeping of which was optional and not by authority, was produced by the pastor, who was a stranger to the parties; and defendant offered in evidence a record therein showing that a person of the same name as plaintiff had given birth “ to an illegitimate child,” which evidence was rejected. Meld, that knowledge in the immediate neighborhood of plaintiff would not warrant a finding that she had knowledge of the adultery of defendant; but if competent, as evidence upon that point, defendant had the advantage of it, and the rejection of cumulative evidence, upon a point uncontroverted, was not error. That the record was properly rejected, and that defendant could not complain that the question as to plaintiff giving birth to three children was not submitted to the jury, as he had waived the right by not insisting upon it as one of the issues, and by not requesting the court on the trial to .submit it. S. M. & D. E Meeker for the appellant. Scott & Steele for the respondent. [MAJORITY — Gray, C.,] Gray, C., reads for affirmance. All concur; Lott, Oh. 0., not sitting. Order affirmed.